Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

The whole
technological landscape changed when Netflix launched streaming internet based
video into Canada in September, 2010. Netflix was technically only an
intervenor in the Board case. It is upset that the Board imposed a tariff on
the one-month “free” trial membership that Netflix offers.

Here is
how Netflix is affected by the Board’s tariff:

“For a
service that offers subscriptions to end-users: 1.7 per cent for the years
2007-2010 and 1.9 per cent for the years 2011-2013 of the amounts paid by
subscribers. In the case of free trials, a minimum monthly fee of 6.8¢ for the
years 2007- 2010 and 7.5¢ for the years 2011-2013 per free trial subscriber
shall apply;”

Fair
dealing for Netflix is clearly an issue. $0.068 per customer per month for free
trials adds up over the years with as many millions of customers as Netflix
has. Also unresolved and up in the air are issues around “downloads” and
“making available right” – on the one hand, the Board says that SOCAN not
entitled but then the tariff refers to
liability for downloads.

Here,
in the interests of immediate information with minimal comment, is the succinct
bottom line of the FCA:

[52]
Before concluding, I would simply say that, in the end, rules of procedure are
there to serve the interests of justice. In my view, justice in this case required that Netflix be
given the opportunity of putting its case forward with regard to the issues of
fair dealing and technological neutrality.

VI.
Conclusion

[53]
I would therefore allow the application for judicial review with costs, I would set aside the Board’s
decision insofar as it pertains to royalties on free trials and I would return
the matter to a differently constituted panel of the Board for redetermination
in accordance with these reasons.

(highlight added)

Some
interesting questions naturally arise immediately:

What effect might the CBC
v. SODRAC decision have had on this case, if the ruling had been available at the time
of argument?

What effect will it have
if this case goes back to the Board for redetermination?

What effect will it have,
if SOCAN should seek leave to appeal from this decision to the Supreme Court of
Canada?

Given that two of the
three members of the Copyright Board who decided the original decision in 2013
are still on the Board, and only one new member (the Chair, Justice Robert
Blair) has since been appointed and there are no other currently appointed members, how will the unusual but clearly intentional
reference to “a differently constituted panel” play
out? Will Section 22 of the Interpretation
Act concerning "quorum" need to be considered?